2022 (11) TMI 134 - AT - Income Tax
Revision u/s 263 by CIT - Whether PCIT erred in exceeding his jurisdiction in passing the order u/s 263 ignoring that an order passed u/s 143(3) r/w sec. 153D cannot be revised without revising the approval of the Addl. CIT - additions on account of unexplained investment and on unexplained expenditure? - HELD THAT:- As decided in case of Kapil Mehta [2021 (10) TMI 671 - ITAT DELHI] orders of search and seizure passed u/s 153A or u/s 153C of the Act are required to be passed after prior approval of the Joint Commissioner except as provided u/s 154BA(12). Therefore, if the argument of the Ld. AR is to be accepted then in such cases where the assessment has been framed under Section 153A or Section 153C, the same will go out of the ambit of the provisions of Section 263 of the Act and such a view is directly contrary to the decision of the Hon’ble Supreme Court in T .N .Civil Corporation [2003 (1) TMI 7 - SUPREME COURT], Osho Forging Ltd. [2018 (5) TMI 161 - PUNJAB AND HARYANA HIGH COURT] and in NIIT Ltd. Vs. Union of India [2009 (12) TMI 927 - DELHI HIGH COURT]
Power of the Commissioner u/s 263 of the Act is in the nature of supervisory jurisdiction. This power is granted to correct an error, which is prejudicial to the interest of the Revenue in the order of the Assessing Officer, even if it is approved by the Joint Commissioner, who is also falling below the rank of the Pr. Commissioner. If the argument of the ld. AR is accepted then the supervisory authority of the Pr. Commissioner granted under the Act is hampered.
On provisions of Section 263 of the Act give unfettered right to the CIT to revise any order passed by the Assessing Officer. Whatever was to be excluded by the law has already been provided under that Section and the only exception are the issues ‘decided and considered’ in the appellate orders. Therefore, the reasoning of the arguments advanced by the Ld. AR on this line also fails and we dismiss the same.
Validity of order passed u/s 263 - We find that this is quite contradictory on the part of the ld. Pr.CIT. In one part of the order, he is computing the addition which should have been done in the hands of the assessee. Thereafter, he is stating that there is lack of further enquiry and hence he is invoking the provisions of section 263 and directing the AO to make proper enquiry. In our considered opinion, such contradictory order is not legally sustainable.
We note that in the case of Kapurchand Shrimal [1981 (8) TMI 2 - SUPREME COURT] Hon’ble Supreme Court has held that it is the duty of appellate authority to correct the errors in the orders of the authorities below and remand the matter back to them with or without direction unless prohibited by law. In the present case, we find that the above said ratio is fully applicable and the order passed by the CIT is contradictory in itself. Hence, we remit the issue back to the file of Pr.CIT to consider the issue afresh after giving an appropriate opportunity of being heard to the assessee and in the light of our observation hereinabove. Appeal filed by the assessee is partly allowed for statistical purposes.